Cook v. Department of Motor Vehicles

Opinion

THE COURT.

Pursuant to Vehicle Code, section 15023, subdivision (a) (2), the Department of Motor Vehicles received notification that defendant had been convicted of driving while intoxicated on October 14, 1969, in the State of Arizona, and also was convicted of driving while intoxicated on January 11, 1971, in the State of Florida. Pursuant to Vehicle Code, section 13352, subdivision (c), on August 17, 1971, defendant’s driving privilege was suspended by the State of California for a one-year period commencing January 11, 1971.

Defendant filed a petition for writ of mandate in the superior court to compel the Department of Motor Vehicles to annul its order of August 17, 1971. The petition alleged that the Department of Motor Vehicles in making its order of suspension exceeded its jurisdiction in that both out-of-state convictions were constitutionally invalid.

1

[267]

The Department of Motor Vehicles brought a motion to dismiss the action. The court dismissed the writ of mandate pursuant to said motion and discharged the alemative writ of mandate because it was then moot. The dismissal was granted pursuant to

Thomas

v.

Department of Motor Vehicles,

3 Cal.3d 335 [90 Cal.Rptr. 586, 475 P.2d 858].

The facts of

Thomas

are virtually identical with those herein except that the two prior convictions were in California. In

Thomas

the trial court determined the convictions were invalid and granted the petition. The Supreme Court reversed.

Thomas

held that upon receipt of abstracts of judgments showing two drunk driving convictions within a seven-year period, the department pursuant to Vehicle Code, section 13352, subdivision (c) is required to suspend the driving privilege and it is not a part of the department’s duty to pass on the validity of the judgments. It further held that mandate does not lie against the department for the purpose of determining the validity of prior convictions as that agency is not empowered to make such a judicial determination.